Moon v. State
| Decision Date | 30 November 1988 |
| Docket Number | No. 45722,45722 |
| Citation | 375 S.E.2d 442,258 Ga. 748 |
| Parties | MOON v. The STATE. |
| Court | Georgia Supreme Court |
Glen M. Vey, Chattanooga, Tenn. (court-appointed), for Moon.
David L. Lomenick, Jr., Dist. Atty., David J. Dunn, Jr., Scott K. Camp, Asst. Dist. Attys., Michael J. Bowers, Atty. Gen., Dennis R. Dunn, Asst. Atty. Gen., Lafayette, for the State.
The appellant, Larry Eugene Moon, was convicted by a jury in Catoosa County of murder and armed robbery. He was sentenced to death for the murder. 1
At 10:30 p.m. on November 24, 1984, the victim, Ricky Callahan, drove a 1978 Ford LTD to a convenience store to purchase headache medicine for his wife. He never returned. His body was found the next morning in a chert pit, shot twice in the head.
Larry Moon left his motel room late in the evening of November 24, 1984, for the announced purpose of making a telephone call. He returned later, driving the victim's car. He removed approximately $60 from the victim's wallet, and discarded the wallet. Moon and his companion then drove to Chattanooga, Tennessee, where she left him.
On November 26, 1984, a 1980 Buick Riviera was stolen from the parking lot of a shopping mall in Decatur, Alabama. The Callahan car was discovered abandoned three miles west of Decatur, Alabama, on November 28, 1984.
On December 14, 1984, a 1982 Buick LeSabre was stolen from a parking lot in Oneida, Tennessee. The local police knew the owner and the car, and it was soon spotted in Oneida. After a high-speed chase through the surrounding countryside, the police apprehended the car and its driver, Larry Moon. A number of guns were recovered from the interior of the stolen automobile, including one later identified as the murder weapon in this case.
Soon after Moon's capture, the police recovered from another parking lot in Oneida the 1980 Buick Riviera that had been stolen in Decatur, Alabama. The keys to this car were found on Moon when he was arrested. Inside this car were cassette tapes that had been inside Callahan's Ford LTD before it was stolen.
At the sentencing phase of the trial, the state offered additional evidence about Moon's activities before and after Ricky Callahan was murdered.
On November 15, 1984, Moon shot and killed Jimmy Hutcheson at Brown's Tavern in Chattanooga, Tennessee. He left Chattanooga and went to Catoosa County, Georgia, where the Callahan homicide occurred on November 24, 1984. He returned to Chattanooga and at 3:00 a.m. on December 1, 1984, he robbed at gunpoint Peeper's Adult Bookstore in Chattanooga. While there, he kidnapped Terry Lee Elkins (who was a female impersonator). Moon drove back to Georgia on Interstate 75, left the interstate and drove fifteen miles into the country, stopped the car, and sodomized his captive by the side of the road, threatening to kill him if he refused to submit.
Moon returned his captive to Chattanooga, and drove to Gatlinburg, Tennessee. Shortly after midnight on December 2, 1984, Moon (still driving the Buick Riviera he had stolen in Alabama) offered a ride to Darryl Ehrlanger and her fiance Thomas DeJosa. She worked in a restaurant in Gatlinburg and had just gotten off work. Moon took them almost to their home outside of Gatlinburg, stopped the car, and tried to drag Ehrlanger out of the car. When DeJosa attempted to rescue her, Moon shot him. DeJosa ordered her to run into the woods. When she did, Moon fired several shots at her. He then shot DeJosa three more times and left. By the time Ehrlanger reached DeJosa, he was dead.
On December 7, 1984, Moon was back in Chattanooga, where he robbed at gunpoint a convenience store owned by Ray York, taking over $900 from the store as well as the owner's billfold and his .357 magnum pistol. The pistol was recovered from inside the car Moon was driving when he was arrested.
1. The court did not deliver one of Moon's requested charges on circumstantial evidence. However, the principles of the requested charge were covered in substance by the charge delivered by the trial court. The refusal to give the exact language of Moon's request was not error. Price v. State, 180 Ga.App. 215(2), 348 S.E.2d 740 (1986). As the court's charge covered the principles of the requested charge, Moon was not misled to his detriment by the court's somewhat ambiguous indication that the requested instruction would be given. Compare Goins v. State, 177 Ga.App. 536, 339 S.E.2d 790 (1986).
2. From the time of his arrest until shortly before this trial, Moon remained in Tennessee while some of the criminal charges pending there were disposed of. In February of 1987, Moon was transferred to Brushy Mountain State Penitentiary in Petros, Tennessee, to begin serving a life sentence. The district attorney in this case filed detainers and a "Request for Temporary Custody" under the Interstate Agreement on Detainers (IAD). See OCGA § 42-6-20 et seq. Tennessee authorities suggested that since the death penalty was being sought in the Catoosa County case, Georgia should pursue Moon's return by means other than the IAD. An executive agreement was signed by the governors of Tennessee and Georgia providing for Moon's return and providing that if Moon did not receive a death sentence, Moon should be returned to Tennessee following the conclusion of the Georgia proceedings. Moon contested his extradition until August of 1987. Thereafter, on August 21, 1987, while Moon was still in Tennessee, the trial judge and the attorneys in this case met to discuss a date for trial. After allowing for time to dispose of the many anticipated pre-trial motions and resolving schedule conflicts, the parties agreed to a tentative trial date of January 11, 1988. Although Moon's attorney indicated at this hearing that Moon's presence would not be necessary for a month or two, he soon obtained an ex parte order for Moon's immediate return to Georgia. Moon was brought into Georgia on September 3, 1987. On January 5, 1988, Moon's attorneys filed a motion to dismiss for failure to try him within 120 days of his return to Georgia pursuant to the provisions of the IAD. He now contends the trial court erred by denying his motion to dismiss.
(a) The IAD is "a congressionally sanctioned interstate compact the interpretation of which presents a question of federal law." Cuyler v. Adams, 449 U.S. 433, 442, 101 S.Ct. 703, 708, 66 L.Ed.2d 641 (1981).
The central provisions of the Agreement are Art. III and Art. IV....
Article IV provides the means by which a prosecutor who has lodged a detainer against a prisoner in another state can secure the prisoner's presence for disposition of the outstanding charges. Once he has filed a detainer against the prisoner, the prosecutor can have him made available by presenting to the officials of the state in which the prisoner is incarcerated a "written request for temporary custody or availability...."
United States v. Mauro, 436 U.S. 340, 351, 98 S.Ct. 1834, 1842, 56 L.Ed.2d 329 (1978).
If a prosecutor uses Article IV to obtain a prisoner from another state,
trial shall be commenced within one hundred and twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
OCGA § 42-6-20 (Art. IV(c)).
(b) The state argues that the IAD does not apply because it abandoned its attempt to obtain the defendant through the IAD and instead obtained his return by executive agreement and extradition. However, it is not clear that the provisions of the IAD can be avoided once a detainer is filed. Compare U.S. v. Mauro, supra. See also U.S. v. Roy, 771 F.2d 54 (2nd Cir.1985); State ex rel. Bailey v. Shepard, 584 F.2d 858, 862 (8th Cir.1978). We need not decide this issue, however. Although the state may not ignore the 120-day limit in Article IV of the IAD, the trial court may grant any "necessary or reasonable continuance." Moreover, the 120-day limit may be "tolled whenever and for so long as the prisoner is unable to stand trial," OCGA § 42-6-20 (Art. VI(a)), and this language has been interpreted to U.S. v. Roy, supra at 59. Finally, the rights created by the IAD are "nonjurisdictional and waivable." Kowalak v. U.S., 645 F.2d 534, 536 (6th Cir.1981). Since the IAD guarantees are of statutory rather than constitutional proportions, "a defendant need not know of the Act to effectively waive its provisions," U.S. v. Odom, 674 F.2d 228, 230 (4th Cir.1982), and waiver may be shown by agreeing to a trial date set outside the 120-day limit. U.S. v. Hines, 717 F.2d 1481 (4th Cir.1983).
In this case, a trial date was set with the agreement of the defendant's attorney. Thereafter, Moon was returned to Georgia earlier than anticipated, and then filed over 60 motions, which necessarily had to be determined before trial. Compare U.S. v. Scheer, supra at 168-9 (2nd Cir.1984). Moon did not raise any objections to the date set for trial until one day after the 120-day period had elapsed. In these circumstances, Moon cannot now complain that the state missed by one week beginning his trial within 120 days of his return to Georgia. 2
(c) Moon contends that under the IAD he must be returned to Tennessee to complete his sentences there before his sentence of death can be carried out in Georgia. He seeks the invalidation of the aforementioned "Executive Agreement" which provides otherwise.
Article V(e) of the IAD provides: "At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state." (Emphasis supplied.)
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